The forced heirship in Monaco and France

In Monaco, like in France, some heirs, such as the children are subjected to a special legal protection by provisions of internal law.

These provisions prohibit that the heirs be disinherited by the deceased and ensure them to receive a portion of the estate (Articles 912 and following of the French Civil Code and articles 780 and following of the Monegasque Civil Code). This part of the estate is referred to as « forced heirship » and varies depending on the number of protected heirs entitled to the estate.

Others legal systems, mainly Anglo-Saxon systems do not apply this forced heirship system and promote a full freedom of will.

The current internationalization of the society and law leads consequently to raise the question of whether it would be possible to preclude forced heirship regarding international estate and emphasize the freedom of will in such case for the benefit of the foreigners living on the Monegasque and French territories or that of the Monegasque and French nationals living abroad.

Monaco and France provide here different answers.

In two recent judgments called JARRE and COLOMBIER, rendered on September 27th 2017 by the French Court of Cassation, the First Civil Division of the Court has held that forced heirship is not a fundamental principle of the internal law that should be protected by the French international public Order. An exception is however admitted in case it can be shown that its concrete application to a matter would create a situation incompatible with the French key legal principles, especially if the heirs who are prejudiced find themselves in a precarious economic situation and in need.

For its part, Monaco has decided to keep a more protective environment.

The protection of the forced heirship seems to be confirmed by the Article 63 paragraph 2 of the new Code of International Private Law entered into force in July 2017. Pursuant to this article, it is prohibited to deprive a protected heir of the reserved portion awarded to him by the national law of the deceased at the time of his death. Therefore, forced heirship could enter in the Monegasque international Public Order whereas France has just excluded it from the French International Public Order with the two recent judgments mentioned above. The interpretation of this article by the Monegasque Courts should answer this question.

However, the Article 63 of the new Code of International Private Law also allows since its entry into force not to apply forced heirship rules to the estate of a person whose national law doesn’t apply this system, as for example to the estate of a British citizen.